Note: For practice concerning the use in attack of means and methods of combat which cannot be directed at a specific military objective or the effects of which cannot be limited as required by international humanitarian law, see Rule 12, Sections B and C.

The preamble to the 1980 Convention on Certain Conventional Weapons recalls “the general principle of the protection of the civilian population against the effects of hostilities”.

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980, preamble.

Ottawa Convention on Anti-Personnel Mines

The preamble to the 1997 Ottawa Convention on Anti-Personnel Mines specifies that the States parties are “basing themselves … on the principle that a distinction must be made between civilians and combatants”.

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Ottawa, 18 September 1997, preamble.

ICC Statute

Pursuant to Article 8(2)(b)(xx) of the 1998 ICC Statute, the following constitutes a war crime in international armed conflicts:

Employing weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute.

Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(xx).

Without prejudice to the present or future prohibition of certain specific weapons, the use is prohibited of weapons whose harmful effects – resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents – could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population.

Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 14.

San Remo Manual

Paragraph 42(b) of the 1994 San Remo Manual states:

In addition to any specific prohibitions binding upon the parties to a conflict, it is forbidden to employ methods or means of warfare which:

…

(b) are indiscriminate, in that:

(i) they are not, or cannot be, directed against a specific military objective; or

(ii) their effects cannot be limited as required by international law as reflected in this document.

Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, Cambridge, 1995, § 42(b).

UNTAET Regulation No. 2000/15

The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(xx), “[e]mploying weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict” constitutes a war crime in international armed conflicts.

Some weapons and weapons systems are totally prohibited. These blanket prohibitions, which may be traced to treaty or customary international law, are justified on the grounds that the subject weapons are either indiscriminate in their effect or cause unnecessary suffering.

Indiscriminate use is placement of such weapons [i.e. mines, booby traps and other devices] which:

a. is not on, or directed at, a military objective; or

b. employs a method or means of delivery which cannot be directed at a specific military objective; or

c. may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

Some weapons and weapons systems are totally prohibited. These blanket prohibitions, which may be traced to treaty or customary international law, are justified on the grounds that the subject weapons are either indiscriminate in their effect or cause unnecessary suffering.

4.4 Some weapons and weapons systems are totally prohibited. These blanket prohibitions, which may be traced to treaty or customary international law, are justified on the grounds that the weapons in question are either indiscriminate in their effect or cause unnecessary suffering.

…

4.5 It is prohibited to employ weapons which cannot be directed at a specific military objective or the effects of which cannot be limited as required by Additional Protocol I (G.P.I) and are therefore of a nature that they may strike military objectives and civilians or civilian objects without distinction …

…

4.8 Poison or poisoned weapons are illegal because of their potential to be indiscriminate. …

…

4.20 … Both chemical and biological weapons are prohibited because they cause unnecessary suffering and may affect the civilian population in an indiscriminate fashion.

…

4.26 … [I]ndiscriminate use [of anti-vehicle mines] is prohibited.

…

4.30 All legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately or in such a way as to cause unnecessary injury or suffering.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 4.4, 4.5, 4.8, 4.20, 4.26 and 4.30.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Belgium

According to Belgium’s Teaching Manual for Officers (1994), it is especially forbidden to use indiscriminate weapons.

Canada’s LOAC Manual (1999) states that some weapons are “totally prohibited by the LOAC” because they are indiscriminate. It further states:

Weapons that are indiscriminate in their effect are prohibited. A weapon is indiscriminate if it might strike or affect legitimate targets and civilians or civilian objects without distinction. Therefore, a weapon that cannot be directed at a specific legitimate target or the effects of which cannot be limited as required by the law of armed conflict is prohibited. For example, it may be argued that the Scud missile used in the Gulf War falls in that category.

Canada, LOAC The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 5-2, §§ 10 and 11.

The manual adds that the use of poison or poisoned weapons is

illegal because of their potential to be indiscriminate. For example, the poisoning or contamination of any source of drinking water is prohibited. Posting a notice that the water has been contaminated or poisoned does not make this practice legal, as both civilians and combatants might drink from that water source and be equally affected.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 5-2, § 20.

As regards lawful weapons, the manual states: “Legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately.”

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 5-3, § 32.

Canada

Canada’s LOAC Manual (2001) states in its chapter entitled “Restrictions on the use of weapons” that some weapons are “totally prohibited by the LOAC because they are … indiscriminate”.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 508.

The manual further states:

Weapons that are indiscriminate in their effect are prohibited. A weapon is indiscriminate if it might strike or affect legitimate targets and civilians or civilian objects without distinction. Therefore, a weapon that cannot be directed at a specific legitimate target or the effects of which cannot be limited as required by the LOAC is prohibited. For example, it may be argued that the Scud missile used in the Gulf War falls in that category.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 509.

It also notes the indiscriminate nature of poison:

Poison or poisoned weapons are illegal because of their potential to be indiscriminate. For example, the poisoning or contamination of any source of drinking water is prohibited. Posting a notice that the water has been contaminated or poisoned does not make this practice legal, as both civilians and combatants might drink from that water source and be equally affected.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 512.

With regard to limitations placed on weapons that are otherwise lawful under the law of armed conflict, the manual states: “Legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately.”

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 520.2.

Chad

Chad’s Instructor’s Manual (2006) prohibits the use of “weapons with indiscriminate effects”.

Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):

II.1.1. Weapons striking without distinction

Certain weapons are completely prohibited by the LOAC because they strike without distinction …

…

A weapon strikes without distinction if it can strike or touch legitimate objectives and civilians or civilian objects without distinction. Consequently, it is prohibited to use a weapon which cannot be directed against a legitimate objective or the effects of which cannot be limited as required by the LOAC.

…

For example: Scud missile used by Iraq against Israel during the Gulf War.

Ecuador’s Naval Manual (1989) states: “The use of weapons which by their nature are incapable of being directed specifically against military objectives, and therefore that put noncombatants at equivalent risk, are forbidden due to their indiscriminate effect.”

Weapons that are incapable of being controlled in the sense that they can be directed at a military target are forbidden as being indiscriminate in their effect. Drifting armed contact mines and long-range unguided missiles (such as the German V-1 and V-2 rockets of World War II) fall into this category. A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained. An artillery round that is capable of being directed with a reasonable degree of accuracy at a military target is not an indiscriminate weapon simply because it may miss its mark or inflict collateral damage. Conversely, uncontrolled balloon-borne bombs, such as those released by the Japanese against the west coast of the United States and Canada in World War II, lack that capability of direction and are, therefore, unlawful.

France’s LOAC Teaching Note (2000) states that, “because of their indiscriminate effects”, the use of poison, chemical weapons, biological and bacteriological weapons, dum-dum bullets or other projectiles with expanding heads, anti-personnel mines, weapons that injure by non-detectable fragments, blinding laser weapons, and torpedoes without self-destruction mechanisms “is totally prohibited by the law of armed conflicts”.

France, Fiche didactique relative au droit des conflitsarmés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 6.

France

France’s LOAC Manual (2001) states that weapons that have “indiscriminate effects” are prohibited.

The manual adds that, “because of their indiscriminate effects”, the use of poison, chemical weapons, biological and bacteriological weapons, dum-dum bullets or other projectiles with expanding heads, anti-personnel mines, weapons that injure by non-detectable fragments, blinding laser weapons, and torpedoes without self-destruction mechanisms “is totally prohibited by the law of armed conflicts”.

Germany’s Soldiers’ Manual (1991) provides: “It is prohibited to use means or methods of warfare which are intended or of a nature … to strike military targets and civilian persons or civilian objects indiscriminately.”

Germany’s IHL Manual (1996) states: “It is prohibited, in particular, to employ means or methods of warfare, which are intended to or of a nature … to strike military targets and civilian persons or civilian objects indiscriminately.”

Germany’s Soldiers’ Manual (2006) states: “It is prohibited to use means or methods which are intended or of a nature, … to damage military objectives and civilian persons or civilian objects without distinction.”

Since St. Petersburg, there have been several universally accepted rules regarding weapons:

…

Another important goal to attain is control over the weapons to ensure that the harm they inflict is limited only to the battlefield and the combatants thereon, and does not spread out of control to innocent parties such as civilians. Weapons that do not distinguish between targets are prohibited.

Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, pp. 11–12; see also p. 37.

Israel

Israel’s Manual on the Rules of Warfare (2006) states:

It must be ensured that the results of the use of weapons are confined to the battlefield and the combatants thereon, and are not dispersed uncontrollably over surrounding areas. Weapons that do not distinguish between one target and another are prohibited.

Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 13.

The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).

Netherlands

The Military Manual (2005) of the Netherlands states:

[I]t is forbidden to use means and combat methods where the effects cannot be limited to combatants and military targets, and which affect civilians and civilian targets. This is defined as the use of indiscriminate means or indiscriminate attack.

The manual further states that “[t]he question whether a non-lethal weapon can be used as a form of warfare will primarily depend on whether such a weapon”, inter alia, “is limited, in the effects of its use or deployment, to combatants or military objects”.

In its chapter on non-international armed conflict, the manual states:

It is prohibited to use weapons causing unnecessary suffering or excessive injury, or that are indiscriminate. This means that biological, chemical, toxic or intoxicating weapons, dumdum bullets, saw-blade bayonets, weapons which cause injury by non-detectable fragments, anti-personnel mines and booby traps, blinding laser weapons and firearms whose primary purpose is to cause burn injuries to persons are forbidden.

Nigeria’s Military Manual (1994) states that “the basic principles are that every commander has the right to choose the means and methods or type of warfare” but has to “distinguish between military and civilian objects”.

The manual further states: “Belligerent parties and their armed forces must refrain from using weapons … which, because of their imprecise nature or their effects, indiscriminately injure the civilian population and combatants.”

h) all types of weapons of an indiscriminate character or that cause excessive injury or suffering.

Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, Article 6.

South Africa

South Africa’s Revised Civic Education Manual (2004) states: “Weapons which are likely to … affect both civilians and combatants, without distinction, and whose harmful effects go beyond control, in time or place, are illegal per se.”

Sweden’s IHL Manual (1991) states that, according to the criteria given in the 1868 St. Petersburg Declaration and in the 1907 Hague Convention (IV):

Weapons shall be considered particularly inhuman if they:

– cause unnecessary suffering or superfluous damage, or

– have indiscriminate effects, meaning that the weapon effects strike military objectives and civilian persons without any distinction.

These criteria have been used in all arms limitation negotiations in recent years.

Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.3.1, pp. 78–79.

Switzerland

Switzerland’s Basic Military Manual (1987), with respect to nuclear weapons, refers to Article 51 of the 1977 Additional Protocol I and states: “It is prohibited to use weapons the effects of which can harm civilian or military objectives without discrimination.”

6.4. It is prohibited to employ weapons which cannot be directed at a specific military objective or the effects of which cannot be limited as required by Additional Protocol I and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction.

6.4.1. This provision operates as an effective prohibition on the use of weapons that are so inaccurate that they cannot be directed at a military target. The V1 flying bomb used in the Second World War and the Scud rocket used during the Gulf conflict of 1990–91 are examples of weapons likely to be caught by this provision.

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 6.4–6.4.1.

United States of America

The US Air Force Pamphlet (1976) states:

The existing law of armed conflict does not prohibit the use of weapons whose destructive force cannot strictly be confined to the specific military objective. Weapons are not unlawful simply because their use may cause incidental casualties to civilians and destruction of civilian objects. Nevertheless, particular weapons or methods of warfare may be prohibited because of their indiscriminate effects … Indiscriminate weapons are those incapable of being controlled, through design or function, and thus they can not, with any degree of certainty, be directed at military objectives. For example, in World War II German V-1 rockets, with extremely primitive guidance systems yet generally directed toward civilian populations, and Japanese incendiary balloons without any guidance systems were regarded as unlawful. Both weapons were, as deployed, incapable of being aimed specifically at military objectives. Use of such essentially unguided weapons could be expected to cause unlawful excessive injury to civilians and damage to civilian objects … Some weapons, though capable of being directed only at military objectives, may have otherwise uncontrollable effects so as to cause disproportionate civilian injuries or damage. Biological warfare is a universally agreed illustration of such an indiscriminate weapon. Uncontrollable effects, in this context, may include injury to the civilian population of other states as well as injury to an enemy’s civilian population. Uncontrollable refers to effects which escape in time or space from the control of the user as to necessarily create risks to civilian persons or objects excessive in relation to the military advantage anticipated. International law does not require that a weapon’s effects be strictly confined to the military objectives against which it is directed, but it does restrict weapons whose foreseeable effects result in unlawful disproportionate injury to civilians or damage to civilian objects.

United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 6-3(c).

As regards new weapons, the Pamphlet states:

A new weapon or method of warfare may be illegal, per se, if it is restricted by international law including treaty or international custom … [T]he legality of new weapons … is determined by whether the weapon’s … effects are indiscriminate as to cause disproportionate civilian injury or damage to civilian objects.

United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 6-7(a).

United States of America

The US Air Force Commander’s Handbook (1980) states:

Weapons that are incapable of being controlled enough to direct them against a military objective … are forbidden. A weapon is not unlawful simply because its use may cause incidental or collateral casualties to civilians, as long as those casualties are not foreseeably excessive in light of the expected military advantage. Using unpowered and uncontrolled balloons to carry bombs is thus forbidden, since these weapons would be incapable of being directed against a military objective.

United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 6-2(b).

United States of America

The US Naval Handbook (1995) states: “Weapons which by their nature are incapable of being directed specifically against military objectives, and therefore that put noncombatants at equivalent risk, are forbidden due to their indiscriminate effect.”

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 9.1.

The Handbook further specifies:

Weapons that are incapable of being controlled (i.e., directed at a military target) are forbidden as being indiscriminate in their effect. Drifting armed contact mines and long-range unguided missiles (such as the German V-1 and V-2 rockets of World War II) fall into this category. A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained. An artillery round that is capable of being directed with a reasonable degree of accuracy at a military target is not an indiscriminate weapon simply because it may miss its mark or inflict collateral damage. Conversely, uncontrolled balloon-borne bombs, such as those released by the Japanese against the west coast of the United States and Canada in World War II, lack that capability of direction and are, therefore, unlawful.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 9.1.2.

United States of America

The US Naval Handbook (2007) states that “weapons, which by their nature are incapable of being directed specifically against military objectives, and therefore that put civilians and noncombatants at equivalent risk, are forbidden due to their indiscriminate effect”.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 9.1.

The Handbook also states:

Weapons that are incapable of being directed at a military objective are forbidden as being indiscriminate in their effect. Drifting armed contact mines and long-range unguided missiles (such as the German V-1 and V-2 rockets of World War II) fall into this category. A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the anticipated military advantage to be gained. An artillery round that is capable of being directed with a reasonable degree of accuracy at a military target is not an indiscriminate weapon simply because it may miss its mark or inflict collateral damage. Conversely, uncontrolled balloon-borne bombs, such as those released by the Japanese against the west coast of the United States and Canada in World War II, lack that capability of direction and are, therefore, unlawful.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 9.1.2.

Yugoslavia, Socialist Federal Republic of

The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) prohibits “blind weapons” the effects of which “cannot be controlled during their use”.

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

…

40. employing weapons, projectiles, material and methods of … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles, material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the Statute of the International Criminal Court.

Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

…

26. employing weapons, projectiles, material and methods of … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles, material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the Statute of the International Criminal Court.

Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(26).

Burundi

Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:

[The following are] considered as war crimes:

…

B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:

…

s) employing weapons, projectiles, material and methods of combat which are … inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of combat are the subject of a comprehensive prohibition.

Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(B)(s).

Burundi

Burundi’s Penal Code (2009) states:

“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:

…

2. … [S]erious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

…

20°. Employing weapons, projectiles and material and methods of warfare which are … inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition.

Burundi, Penal Code, 2009, Article 198(2)(2°).

Canada

Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.

Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).

Congo

The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.

Denmark’s Military Criminal Code (1973), as amended in 1978, provides:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].

Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).

Denmark’s Military Criminal Code (2005) provides:

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].

Denmark, Military Criminal Code, 2005, § 36(2).

Georgia

Under Georgia’s Criminal Code (1999), any war crime provided for by the 1998 ICC Statute, which is not explicitly mentioned in the Code, such as “employing weapons, projectiles and material … which are inherently indiscriminate” in international armed conflicts, is a crime.

Georgia, Criminal Code, 1999, Article 413(d).

Mali

Under Mali’s Penal Code (2001), “employing weapons, projectiles, materials and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflicts, provided that such means are the subject of a comprehensive prohibition” is a war crime in international armed conflicts.

Mali, Penal Code, 2001, Article 31(i)(20).

New Zealand

Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(xx) of the 1998 ICC Statute.

New Zealand, International Crimes andICC Act, 2000, Section 11(2).

Senegal

Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:

[O]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

…

17. employing weapons, projectiles, material and methods of combat which are … inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles, material and methods of combat are the subject of a comprehensive prohibition and that they are prohibited by an annex to the Rome Statute of the International Criminal Court adopted according to the provisions of its Articles 121 and 123.

Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(b)(17).

Senegal

Senegal’s Law Authorizing Ratification of the 2008 Convention on Cluster Munitions (2010) states:

Concerned that cluster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, and impede post-conflict rehabilitation and reconstruction, States Parties adopted the Convention on Cluster Munitions, in Dublin (Ireland) on 30 May 2008.

In adopting this Convention, States have put in place the keystone of the international legal structure established to overcome these weapons that do not stop killing.

This text, which is inspired by the UN Charter and the rules of international humanitarian law, aims to reduce, as much as possible, the risks following from cluster munition weapons and the effects of such arms on civilian populations and persons.

…

In ratifying this Convention, Senegal, a country without stockpiles of cluster munitions, is thus making a significant contribution to the future prohibition on the use of these weapons, given their indiscriminate effects.

South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts:

employing weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the [1998 ICC] Statute by an amendment in accordance with the relevant provisions set out in Articles 121 and 123 of the Statute.

South Africa, ICC Act, 2002, Schedule 1, Part 3, § (b)(xx).

United Kingdom of Great Britain and Northern Ireland

Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(xx) of the 1998 ICC Statute.

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

…

28. Employing weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international humanitarian law of armed conflict.

…

38. Launching attacks by using weapons … that do not allow to distinguish between military and non-military objectives or between combatants and persons such as, for example, … recourse to … means of attack that cannot be directed against a specific military object or the use of weapons or methods of combat that can be expected to cause incidental injury or death to protected persons or damage to protected objects.

Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2, 26.3.28 and 26.3.38.

In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”

In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:

The principle of distinction is complex and encompasses a number of treaty and customary norms applicable in internal armed conflicts, in addition to, in many cases, enjoying ius cogens status. These rules [include] … the prohibition against … the use of weapons that have indiscriminate effects.

In its judgment in Physicians for Human Rights v. O.C. Southern Command in 2003, Israel’s High Court of Justice reviewed arguments made by petitioners and by the Israel Defense Forces (IDF) on the legality of the use of flechette shells, before concluding on the matter:

Petitioners request an order nisi that will order the Israeli Defense Forces, in the context of its operations in the Gaza Strip, to cease using flechette shells. A flechette shell contains a cluster of steel darts. When a flechette shell detonates, at a certain height above the ground, these darts are dispersed over an area of several hundred square meters. Like other armaments that contain submunitions – such as cluster bombs – flechettes are intended to be used against field targets, as opposed to distinct, individual targets.

According to petitioners, the use of flechette shells violates the laws of war, which prohibit the use of weapons that do not discriminate between combatants and non-combatants. Petitioners point to two instances in which flechette shells have caused civilian deaths. In the first incident, a flechette shell was used to respond to fire upon a military position in Netzarim, in the Gaza Strip. The shell landed near a Bedouin encampment and caused the deaths of three women. In the second incident, flechette shells were fired upon individuals suspected of being terrorists, on their way to carry out a terrorist attack. In this incident, three youths were killed. As such, petitioners assert that the use of flechette shells is illegal, and that the IDF should be completely prohibited from using such shells.

Respondents assert that the question of whether to prohibit the use of flechette shells, in the context of the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (1980) [hereinafter the 1980 Convention on Certain Conventional Weapons], has been raised several times before various international forums. However, a prohibition against the use of flechette shells has never received significant international support. The 1980 Convention on Certain Conventional Weapons completely prohibited the use of other weapons. Israel joined this treaty in 1995, subsequently ratified it, and sees itself as bound by its provisions. But this treaty does not ban the use of weapons that contain submunitions, such as flechette shells. As such, petitioner’s claim that the use of flechette shells is prohibited by the law of war is incorrect, and should be rejected.

…

Petitioners request that we prohibit the military from using flechette shells. As the use of such artillery is not prohibited by international conventions, we cannot grant their petition. Our decisions have stated that “this Court will not intervene in the choice of military weapons, which the respondents use in order to prevent vicious terrorist attacks.” See HCJ 5872/01 Barake v. The Prime Minister. We further note that we think the IDF has properly set out the conditions under which the use of flechettes is authorized. Of course, the question of whether the use of flechettes is justified under individual circumstances is given to the discretion of the authorized commander. This commander will act according the military directives, which are intended to prevent casualties among residents who do not endanger the IDF forces or Israeli civilians.

In 1995, in a statement at the First Review Conference of States Parties to the Convention on Certain Conventional Weapons, the delegation of Australia stated:

Our presence at this conference reflects a shared belief that even the harsh reality of armed conflict should be tempered by humanitarian constraints. Participants in the diplomatic conferences on humanitarian law in the late 1970s concluded that the international community should develop a framework for specific regulations on the use of those conventional weapons which are indiscriminate or disproportionate in their effects. Those weapons have come to include landmines and booby traps, incendiary devices and weapons which injure by means of non-detectable fragments.

Australia, Statement of 26 September 1995 at the First Review Conference of States Parties to the Convention on Certain Conventional Weapons, Vienna, 25 September–13 October 1995, reprinted in
Australian Year Book of International Law, Vol. 16, 1995, p. 732.

Australia

In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, Australia, admitting that “to date, international efforts have not culminated in an international convention banning the threat or use of nuclear weapons in all circumstances”, quoted UN General Assembly Resolution 1653 (XVI) according to which “the use of nuclear and thermo-nuclear weapons would … cause indiscriminate suffering” to conclude that “the use of nuclear weapons would be contrary to international law”.

In 1973, in its comments on the UN Secretary-General’s report on napalm and other incendiary weapons and all aspects of their possible use, Canada stated:

Broadly, there should be concern with the use of all types of weapons in ways which could … be indiscriminate in effect; for this reason, the protocols additional to the Geneva Conventions of 1949 which are currently being prepared under the auspices of the International Committee of the Red Cross in close co-operation with the United Nations General Assembly, should reaffirm the existing principles and rules of conventional and customary international law of armed conflicts which apply generally to the choice and use of weapons by States in armed conflict and are contained, inter alia, in the Hague Declaration [concerning Asphyxiating Gases] of 1899, the Hague Conventions of 1907 and the Geneva [Gas] Protocol of 1925.

Canada, Comments on the report of the UN Secretary-General on napalm and other incendiary weapons and all aspects of their possible use, UN Doc. A/9207/Add.1, 17 December 1973, p. 2.

Canada

In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Canada stated: “Agreement was lacking on standards by which … ‘indiscriminate effects’ could be measured.”

The definition of indiscriminate attack contained in paragraph 4 of Article 46 [now Article 51 of the 1977 Additional Protocol I] is not intended to mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances. It is our view that this definition takes account of the circumstances, as evidenced by the examples listed in paragraph 5 to determine the legitimacy of the use of means of combat.

At the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, China declared: “The impermissibility of using means of warfare that … had indiscriminate effects had become a universally accepted principle.”

China, Statement at the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 11-21 December 2001, UN Doc. CCW/CONF.II/SR.2, 16 January 2002, § 41.

Cyprus

In 1977, during a debate in the First Committee of the UN General Assembly, Cyprus referred to the Stockholm International Peace Research Institute (SIPRI), which had stated in its report on the law of war and dubious weapons that indiscriminate weapons were prohibited by international law.

Cyprus, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/32/PV.44, 25 November 1977, p. 17.

Denmark

In 2008, in a joint cost benefit analysis of a possible introduction of a national moratorium on all cluster munitions, Denmark’s Ministry of Defence and Ministry of Foreign Affairs stated:

[The] provisions, which are outlined below, are generally recognized as being an expression of customary international law. …

The purpose of international humanitarian law is to protect the victims of war as much as possible. …

It follows from API [1977 Additional Protocol I] that military attacks that do not respect the distinction between civilians and military targets are illegal because of their indiscriminate nature. Such indiscriminate attacks are defined in API Article 51(4) and Article 51([5]).

Denmark, Ministry of Defence and Ministry of Foreign Affairs, A Cost Benefit Analysis of a Possible Introduction of a National Danish Moratorium on All Cluster Munitions, 1 April 2008, p. 15.

Djibouti

In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Distinction”, stated: “The use of weapons that cannot distinguish between civilians and civilian objects [on the one hand] and military objectives [on the other] is prohibited.”

Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 194.

Djibouti

In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training, under the heading “[O]ffences related to violations of humanitarian law”, listed “[e]mploying weapons, projectiles, means and methods of war … that are by nature indiscriminate”.

Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 210.

Ecuador

In 1988, during a debate at the Fifteenth Special Session of the UN General Assembly, Ecuador stated: “Weapons, … which threaten equally belligerents and the helpless civilian population, must be the subject of a ban without reservations or limitations.”

Ecuador, Statement at the Fifteenth Special Session of the UN General Assembly, UN Doc. A/S-15/PV.2, 1 June 1988, p. 28.

Ecuador

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Ecuador stated:

The use of nuclear weapons does not discriminate by general norm the military objectives from civil objectives. This factor equally attends against a fundamental principle of the International Humanitarian Law: which takes care of the protection of innocent people during war times.

…

… The uncontrollable effects that a nuclear device has can easily go against the laws and the uses of the war.

Upon signature of the 1998 ICC Statute, Egypt stated that its understanding of Article 8 of the Statute was as follows:

(a) The provisions of the Statute with regard to the war crimes referred to in article 8 in general and article 8, paragraph 2(b) in particular shall apply irrespective of the means by which they were perpetrated or the type of weapon used, including nuclear weapons, which are indiscriminate in nature … in contravention of international humanitarian law.

…

(d) Article 8, paragraph 2(b)(xvii) and (xviii) of the Statute shall be applicable to all types of emissions which are indiscriminate in their effects and the weapons used to deliver them, including emissions resulting from the use of nuclear weapons.

Egypt, Declarations made upon signature of the 1998 ICC Statute, 26 December 2000, § 4(a) and (d).

Egypt

In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Egypt stated: “Time-delay[ed] weapons … were … indiscriminate.”

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Egypt stated that the use of nuclear weapons “cannot at all be legal” because

by their inherent qualitative and quantitative characteristics of their effect, nuclear weapons necessarily have cataclysmic and indiscriminate effects and cannot distinguish between combatants and non-combatants and between protected and unprotected objects, and are expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

Egypt, Written statement submitted to the ICJ, Nuclear Weapons case, June 1995, § 18; see also Written comments of Egypt on other written statements submitted to the ICJ, Nuclear Weapons case, September 1995, §§ 53–55.

Egypt

In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, Egypt stated:

The use of nuclear weapons is prohibited not because they are or they are called nuclear weapons. They fall under the prohibitions of the fundamental and mandatory rules of humanitarian law which long predate them, by their effects; not because they are nuclear, but because they are indiscriminate weapons of mass destruction.

In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, France stated:

29. … Each weapon, with its characteristics, its effects and its method of use, had to be considered separately, if specific conclusions have to be reached.

30. … The more important concept of indiscriminate effects might perhaps be applicable to some weapons, but related more often to their method of use. For instance, the mine became indiscriminate only when used as a drifting mine. Indiscriminateness lay much more in the use made of a weapon and in the brain of the commanding officer than in the weapon itself.

In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1995, France stated:

The fact that the [CDDH] took into consideration only conventional weapons also follows from the creation therein of an ad hoc commission on “conventional weapons”. Moreover, by its resolution 22, it [the CDDH] recommended the convocation of a conference “with a view to reaching a) agreements on prohibitions or restrictions on the use of specific conventional weapons including those which may be deemed to … have indiscriminate effects, taking into account humanitarian and military considerations; and b) agreement on a mechanism for the review of any such agreements and for the consideration of proposals for further such agreement”.

…

It furthermore appears that the States which participated in the conference considered that the rules figuring in the protocol cannot in themselves suffice to establish the illegality of the use of specific weapons, to whatever type they might belong.

…

Also, one cannot but ascertain the absence of a customary rule prohibiting the use of nuclear weapons.

…

It is true that a certain trend of opinion tries to prove the existence of a legal principle of the prohibition of nuclear weapons not by relying on positive norms specifically dealing with such weapons, but by constructing a reasoning on the basis of other rules of international law. Without directly mentioning the weapons in question, it is said that these rules could be applied to them [i.e. the weapons], by way of implication or by way of extension. For instance, the idea is sometimes put forward that certain rules in force of humanitarian law and the law of war would involve the prohibition of nuclear weapons. The supporters of that theory base themselves especially on diverse rules or principles enunciated in [the 1977 Additional Protocol I] – without questioning which [of these rules] are of customary nature and which are of conventional nature – and especially … the prohibition of indiscriminate attacks in the terms of article 51 of the protocol …

The government of France does not deem it necessary … to discuss in detail such reasoning, which it formally rejects … Indeed, if one cannot contest that protocol I of 1977 expresses, in some respects, general basic principles of existing law, it is obvious that … with respect to others, it constitutes a development …

Moreover, to follow the reasoning recalled above, once the basic customary principles applicable to nuclear weapons were drawn out and defined, one would have to establish that a rule prohibiting the use of these weapons follows from it.

In 2009, the Minister of Foreign and European Affairs of France stated:

[B]oth Israel and Hamas have used weapons that have indiscriminate effects, since aerial bombing and mortar fire were not used in such a manner as to spare civilians. Yet the prohibition of the use of weapons with indiscriminate effects is another key principle of international humanitarian law.

France, Minister of Foreign and European Affairs, “The Savaging of Humanitarian Law”, New York Times, 28 January 2009, p. 2.

Germany, Federal Republic of

At the CDDH, the Federal Republic of Germany stated:

The definition of indiscriminate attacks contained in paragraph 4 of Article 46 [now Article 51 of the 1977 Additional Protocol I] is not intended to mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances. Rather, the definition is intended to take account of the fact that the legality of the use of means of combat depends upon circumstances, as shown by the examples listed in paragraph 5. Consequently the definition does not prohibit as indiscriminate any specific weapon.

In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:

16. How does the Federal Government assess the use of artillery ammunition, fin-stabilized ammunition, shrapnel shells and other imprecise weapons in the densely populated residential areas in Gaza, documented by Amnesty International, under international law?

The Federal Government has no reliable information on the use of such ammunition. The use of means of warfare which cannot be directed against a specific military objective, so-called indiscriminate attacks, would be prohibited … This would depend not only on the type of ammunition but also on the circumstances of their use.

Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Winfried Nachtwei, Kerstin Müller (Cologne), Jürgen Trittin, other Members and the Parliamentary Group BÜNDNIS 90/DIE GRÜNEN, BT-Drs.16/12673, 20 April 2009, p. 6.

Holy See

In 1977, during a debate in the First Committee of the UN General Assembly, the Holy See condemned the use of indiscriminate weapons.

Holy See, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/32/PV.24, 3 November 1977, p. 76.

India

The Report on the Practice of India states:

The Geneva Convention norms regarding use of indiscriminate weapons are applicable by virtue of the Geneva Conventions Act. Although it is not specifically made applicable to internal conflicts, yet it is possible to suggest on the basis of the practice of not using such weapons that in India such weapons are prohibited in times of internal conflict.

Report on the Practice of India, 1997, Chapter 3.3.

Islamic Republic of Iran

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Islamic Republic of Iran stated:

Some of the principles of humanitarian international law from which one can deduce the illegitimacy of the use of nuclear weapons are: … Prohibition of the use of instruments that cause indiscriminate effects, including means and methods that are used suddenly and equally against both civilian and military targets.

Islamic Republic of Iran, Written statement submitted to the ICJ, Nuclear Weapons case, 19 June 1995, p. 2; see also Written statement submitted to the ICJ, Nuclear Weapons (WHO) case, undated, p. 1.

Islamic Republic of Iran

In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, the Islamic Republic of Iran stated: “The prohibition of weapons or tactics that cause indiscriminate harm between combatants and non combatants is another argument against the legality of the use of nuclear weapons.”

According to the Report on the Practice of the Islamic Republic of Iran, the Islamic Republic of Iran’s “opinio juris is supportive of not using indiscriminate weapons (because in Iran’s view civilians must be protected against war effects)”.

Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 3.3.

Israel

In 1991, during a debate in the First Committee of the UN General Assembly, Israel advocated that all weapons that can kill civilians indiscriminately be considered weapons of mass destruction. It gave Scud missiles as an example of this class of weapon.

Israel, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/46/PV.19, 28 October 1991, pp. 24–25; Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/46/PV.34, 12 November 1991, p. 18.

Israel

According to the Report on the Practice of Israel, Israel “does not make use of inaccurate weapon systems which are liable, by their very nature, to strike at locations far removed from their original targets” and considers Scud missiles and Katyusha rockets to be indiscriminate.

Report on the Practice of Israel, 1997, Chapter 3.3.

Italy

At the CDDH, Italy stated:

There was nothing in paragraph 4 [of Article 46, now Article 51 of the 1977 Additional Protocol I] to show that certain methods or means of combat were prohibited in all circumstances by the Protocol except where an explicit prohibition was established by international rules in force for the State concerned with regard to certain weapons or methods.

The Report on the Practice of Jordan states that, while Jordan has no official specific interpretation of the concept of indiscriminate weapons, it does not “use, manufacture or export landmines, V-2 bombs or missiles that cannot be accurately guided”.

Report on the Practice of Jordan, 1997, Chapter 3.3.

Kuwait

According to the Report on the Practice of Kuwait, Kuwait is of the opinion that indiscriminate weapons must be prohibited.

Report on the Practice of Kuwait, 1997, Chapter 3.3.

Lesotho

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Lesotho stated: “Any use of nuclear weapons, even in self-defense, would violate international humanitarian law, including the Hague and Geneva Conventions, which prohibit as practices of war, indiscriminate killing.”

In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1995, Malaysia stated: “Nuclear weapons are not just another weapon. Their nature and effect are such that they are inherently incapable of being limited with any degree of certainty to a specific military target.”

Malaysia, Written statement submitted to the ICJ, Nuclear Weapons (WHO) case, 19 June 1995, p. 22; see also Written statement submitted to the ICJ, Nuclear Weapons (WHO) case, 20 September 1994, pp. 5–6.

Marshall Islands

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Marshall Islands stated that “any use of nuclear weapons violates the laws of war including the Geneva and Hague Conventions and the United Nations Charter. Such laws prohibit … the use of indiscriminate weapons.”

In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1994, Mexico stated: “The principle of discrimination prohibits the use of weapons that fail to discriminate between civilian and military personnel.”

Mexico, Written statement submitted to the ICJ, Nuclear Weapons (WHO) case, 9 June 1994, § 25; see also Written statement submitted to the ICJ, Nuclear Weapons case, 19 June 1995, § 77(d).

Mexico

In 2009, Mexico submitted a proposal to the UN Secretary General to amend Article 8(2)(c) of the 1998 ICC Statute in accordance with Article 121(1) of the Statute, stating:

Within the category of serious violations of the laws and customs applicable in international armed conflicts, the use of certain weapons whose effects are of an indiscriminate nature or cause superfluous injury or unnecessary suffering is included.

Mexico, Proposal of Amendment to Article 8(2)(c) of the ICC Statute, submitted to the UN Secretary General in accordance with Article 121(1) of the ICC Statute, 29 September 2009, p. 2.

Mexico

In 2010, at the First Meeting of States Parties to the 2008 Convention on Cluster Munitions, Mexico stated:

Mexico … urges the States which use or produce cluster munitions to cease such activities and to comply with their obligations under international humanitarian law which prohibits the use of weapons with indiscriminate effects.

Mexico, Statement by the representative of Mexico at the First Meeting of States Parties to the Convention on Cluster Munitions, Laos, 9–12 November 2010.

Nauru

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Nauru stated: “The nuclear weapons for which the status of legality is claimed should be capable of distinguishing between military objectives and civilian objects.”

Nauru, Written statement submitted to the ICJ, Nuclear Weapons case, 15 June 1995, p. 21; see also pp. 19–20.

Netherlands

In 1969, during a debate in the Third Committee of the UN General Assembly, the Netherlands stated that it was:

essential to update and broaden the Hague Conventions and the 1925 Geneva [Gas] Protocol, primarily in so far as related to international security and the protection of human rights, and to extend their application to cover armed conflicts which were not international in character.

Netherlands, Statement before the Third Committee of the UN General Assembly, UN Doc. A/C.3/SR.1733, 11 December 1969, p. 1.

Netherlands

In 1992, during a debate in the First Committee of the UN General Assembly, the Netherlands appealed to States to adhere to the 1980 Convention on Certain Conventional Weapons, arguing that: “Universal adherence would compel States not to use such weapons any more in a military conflict and it would at the same time make it more difficult for such weapons to be used in internal conflicts against civilians.”

Netherlands, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/47/PV.26, 4 December 1992, p. 21.

Netherlands

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Netherlands stated:

[T]he general principles of international humanitarian law in armed conflict also apply to the use of nuclear weapons. Two principles, in particular, which form part of that law are the prohibition on making the civilian population as such the target of an attack and the prohibition on attacking military targets if this would cause disproportionate harm to the civilian population. The applicability of general principles of international humanitarian law in armed conflict – among which must also be counted the principle laid down in Article 22 of the 1907 Hague Regulations that the right of a belligerent to adopt means of injuring the enemy is not unlimited – to the use of nuclear weapons was also confirmed as long ago as 1965 in Resolution XXVIII of the 20th International Conference of the Red Cross (Vienna) which was passed unanimously. Consensus on this point was also reached at the diplomatic conference on Additional Protocol I to the 1949 Geneva Conventions.

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, New Zealand stated:

In general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other weapons … The general application of international humanitarian law to the use of nuclear weapons has also been specifically acknowledged by nuclear-weapon States.

New Zealand, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, §§ 63 and 66.

Among the customary law rules applicable to the use of nuclear weapons, New Zealand further stated: “It is prohibited to use indiscriminate methods and means of warfare which do not distinguish between combatants and civilians and other non-combatants.”

New Zealand, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, § 71.

Nigeria

In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Nigeria stated: “The wars of liberation … were being fought with conventional weapons, with the weaker side, particularly the freedom fighters, as the exclusive targets of … indiscriminate weapons.” Nigeria’s representative added that “his country was therefore anxious for restrictions to be imposed on such weapons”.

The Report on the Practice of Pakistan states that Pakistan “disapproves” of weapons of an indiscriminate nature.

Report on the Practice of Pakistan, 1998, Chapter 3.3.

Peru

The Report on the Practice of Peru, referring to a statement by the head of the Peruvian delegation at the international meeting on the reduction of mines in 1995, states that anti-personnel landmines are considered by Peru as weapons indiscriminate by nature. In addition, the Peruvian State supports the prohibition of anti-personnel mines that are not equipped with self-destruct mechanisms.

Report on the Practice of Peru, 1998, Chapter 3.1, referring to Statement of the head of the Peruvian delegation at the international meeting on the reduction of mines, BoletínInformativo, No. 2432, Lima, 15 July 1995, p. 2.

Poland

In 1973, during a debate in the Sixth Committee of the UN General Assembly on the UN Secretary-General’s report on respect for human rights in armed conflicts, Poland advocated that special emphasis be placed on the prohibition of the use of weapons indiscriminately affecting civilians and combatants.

Poland, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/ SR.1450, 29 November 1973, pp. 287–288.

Republic of Korea

According to the Report on the Practice of the Republic of Korea, the Republic of Korea considers the prohibition of the use of indiscriminate weapons to be part of customary international law.

Report on the Practice of the Republic of Korea, 1997, Chapter 3.3.

The report refers to a presidential declaration in 1991 which stated that the Republic of Korea would not obtain these weapons.

Report on the Practice of the Republic of Korea, 1997, Chapter 3.3, referring to Presidential Declaration to Achieve Denuclearization and Peace of the Korean Peninsula, 8 November 1991.

Romania

In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Romania stated: “The use of weapons with indiscriminate effects, including weapons of mass destruction … [and] biological and chemical weapons, was prohibited by international law and by legal conscience of peoples.”

Upon signature of the 1980 Convention on Certain Conventional Weapons, Romania affirmed “once again its decision to act, together with other States, to ensure the prohibition or restriction of all conventional weapons which … have indiscriminate effects”.

Romania, Declaration made upon signature of the Convention on Certain Conventional Weapons, 8 April 1982, § 5.

Russian Federation

In 1991, in a statement at the International Conference on the Protection of Victims of War, the Minister of Foreign Affairs of the Russian Federation declared with reference to the conflict in Chechnya that in order to protect the civilian population against indiscriminate weapons, bombers, missiles, rockets, artillery shells, incendiary weapons and booby-traps should be completely banned in internal conflicts.

Russian Federation, Statement by the Minister of Foreign Affairs, Andrey Kozyrev, at the International Conference on the Protection of Victims of War, Geneva, 30 August-1 September 1991.

Russian Federation

In 1993, during a debate in the First Committee of the UN General Assembly, the Russian Federation stated that “in view of the sharp increase in the scale of internal ethnic conflicts and in the bloodshed resulting therefrom,” it had put forward “an initiative to establish restrictions under international law on the use of the most destructive and indiscriminate weapons systems in those conflicts”.

Russian Federation, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/48/SR.7, 21 October 1993, p. 8.

Russian Federation

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Russian Federation stated:

As Hans Blix said, “it is certainly correct to say the legality of the use of most weapons depends upon the manner in which they are employed. A rifle may be lawfully aimed at the enemy or it may be employed indiscriminately against civilians and soldiers alike. Bombs may be aimed at specific military targets or thrown at random. The indiscriminate use of a weapon will be prohibited, not the weapon as such.” We should add that it is a duly qualified use rather than the use of weapons as such at large that will be regarded as illegal.

In 2011, during the UN Security Council consideration of the report of the chief prosecutor of the International Criminal Court on the situation in Libya, the permanent representative of the Russian Federation stated: “We are greatly alarmed by the growing number of casualties among civilians and destruction of civil facilities inflicted by the Libyan parties to the conflict, in particular due to the use of indiscriminate types of weapons.”

Russian Federation, Statement by the permanent representative of the Russian Federation before the UN Security Council during the consideration of the report of the chief prosecutor of the International Criminal Court on the situation in Libya, 4 May 2011, p. 9.

Rwanda

In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1993, Rwanda stated: “The use of nuclear weapons by a State during a war or an armed conflict constitutes a contravention of the rules of IHL in general and of the [1980 Convention on Certain Conventional Weapons] in particular.”

According to the Report on the Practice of Rwanda, “landmines and bombs” are considered to be weapons with indiscriminate effects.

Report on the Practice of Rwanda, 1997, Chapter 3.3.

Solomon Islands

In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1994, Solomon Islands stated:

Since [their qualitative] effects may affect people outside the scope of conflict, both in time and geographically, the use of nuclear weapons violates the prohibition on the use of weapons which … cause harm to civilians and have indiscriminate effects.

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Solomon Islands referred to:

The customary rule which states that belligerents must always distinguish between combatants and non-combatants and limit their attack only to the former. This is an old and well-established rule which has achieved universal acceptance. The first multilateral instrument to state it was the St. Petersburg Declaration of 1868 … This obligation is repeated and further elaborated in different forms in many instruments.

In its report on “gross violations of human rights” committed between 1960 and 1993, the South African Truth and Reconciliation Commission noted that the killing of more than 600 people in a attack on the South Western Africa People’s Organisation (SWAPO) base/refugee camp at Kassinga in Angola in 1978 constituted a violation of IHL, stating:

International humanitarian law stipulates that the right of parties in a conflict to adopt means of injuring the enemy is not unlimited and that a distinction must at all times be made between persons taking part in hostilities and civilians, with the latter being spared as much as possible.

In 2010, in a statement at the Tenth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of the Department of International Relations and Cooperation stated:

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It also seeks to prohibit all means and methods of warfare which, inter alia, fail to discriminate between those taking part in the fighting and those who are not, with the emphasis on protecting the civilian population, individual civilians and civilian property.

South Africa, Statement by the Deputy Minister of the Department of International Relations and Cooperation at the Tenth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, 4 May 2010.

Spain

In 2008, in response to a question concerning the prohibition of cluster munitions, Spain’s Secretary of State for Constitutional and Parliamentary Matters wrote:

The Spanish government is at all times supporting the measures advanced within the international community in which humanitarian considerations have primacy over the expected operational advantages that the use by the military of certain weapons, considered to cause excessive suffering to, or that have indiscriminate effects on, the civilian population, … could have.

Spain, Response by the Secretary of State for Constitutional and Parliamentary Matters to Question No. 184/002509, 11 July 2008, p. 92.

Sri Lanka

In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case, Sri Lanka stated:

The unacceptability of the use of weapons that fail to discriminate between military and civilian personnel is firmly established as a fundamental principle of international humanitarian law. These principles which prohibit indiscriminate killing and make the fundamental distinction between combatants and non-combatants have also found expression in the body of treaty law which have been incorporated in a series of international conventions, from about the time of the 1899 Hague Peace Conference and culminating with the Geneva Conventions of 1949 and [their] Additional Protocols of 1977.

In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Sweden stated:

20. A general prohibition of the use of “indiscriminate weapons” could be deduced from the general duty of belligerents to distinguish between combatants and civilians, and between military and civilian objectives … Since, however, article 46, paragraph 3, [of the draft Additional Protocol I] prohibited “the employment of means of combat, and any methods which strike or affect indiscriminately the civilian population and combatants or civilian objects, and military objectives”, a special rule on weapons was perhaps redundant. What were not redundant were rules on specific categories of weapons which governments might agree to ban or restrict the use of on grounds of their indiscriminate effects.

21. All weapons could be used indiscriminately but some were incapable of being directed at military objectives alone. One example was bacteriological weapons: germs could not distinguish between soldiers and civilians … Some of the incendiary weapons had turned out to be quite indiscriminate.

In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, the representative of Switzerland stated:

24. He entirely agreed with the Swedish representative. Two basic principles provided the starting point for the Committee’s discussions: the prohibition of arms which caused unnecessary sufferings, and the distinction between the civilian population and armed forces. Those principles belonged to customary law. They were already in force, and were to be found in the Declaration of St. Petersburg and the Hague Conventions. The ICRC had taken over those principles in articles 33 and 43(3) of draft Protocol I. The proposals put forward by a number of delegations … were merely executing rules: they were not aimed at creating new law, but at clarifying and illustrating the rules already in force.

25. … The problems of banning or restricting the use of certain categories of weapons [introduced by draft Article 33 of the 1977 Additional Protocol I submitted to the CDDH by the ICRC] … was a question of a codification of existing law rather than the creation of new legal norms …

26. … The weapons in question – incendiary or fragmentation weapons, high-velocity projectiles, fléchettes, etc. – were small weapons and could have no decisive impact on the outcome of a conflict; but there was a grave disparity between the suffering they caused and the military advantage they might confer. Even if they were used in defiance of a ban, the advantage of surprise thus gained would be ephemeral.

… The principle of distinction imposes limits on means and methods of warfare: any Weapon or strategy that cannot be directed exclusively at a specific military objective is prohibited.

…

Weapons

International humanitarian law imposes limitations, in some cases a total ban, on the use of weapons whose impact goes beyond the permissible purpose of weakening the enemy. Weapons are prohibited on the basis of three fundamental criteria: if their use inevitably leads to death; if they cause disproportionate injury or Unnecessary suffering; if they strike indiscriminately. On the basis of these three criteria a number of specific weapons have been explicitly prohibited by international conventions, including Anti-personnel mines, Cluster munitions, blinding laser weapons, Dumdum bullets as well as Biological and Chemical weapons. Some of these bans are part of Customary international law.

In 2012, in a speech on the occasion of Public International Law Day, the head of Switzerland’s Federal Department of Foreign Affairs stated that international humanitarian law “also prohibits the use of weapons that have indiscriminate effects, such as chemical weapons or arms with cluster munitions”.

Switzerland, Speech by the head of the Federal Department of Foreign Affairs on the occasion of Public International Law Day, 19 October 2012.

Switzerland

In 2013, in a statement at the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons, the permanent representative of Switzerland stated:

The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapon known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.

Switzerland, Statement by the permanent representative of Switzerland at the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons, 14 November 2013.

Strengthening human security

Turkey

In 1977, during a debate in the First Committee of the UN General Assembly, Turkey stated that it supported a prohibition or restrictions on incendiary weapons and other indiscriminate weapons but held that such rules would only be effective if they reflected a consensus in the world community.

Turkey, Statement before the First Committee of the UN General Assembly, UN Doc. A/C.1/ 32/PV.44, 25 November 1977, p. 23.

Union of Soviet Socialist Republics

In 1975, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, the representative of the USSR stated: “The question of prohibition or restriction of the use of certain types of conventional weapons … of an indiscriminate nature was one of great importance.”

The definition of indiscriminate attacks given in [Article 51(4) of the 1977 Additional Protocol I] was not intended to mean that there were means of combat the use of which would constitute an indiscriminate attack in all circumstances. The paragraph did not in itself prohibit the use of any specific weapon, but it took account of the fact that the lawful use of means of combat depended on the circumstances.

In 1991, in a briefing note on the Gulf crisis, the UK Foreign and Commonwealth Office criticized Iraq’s policy of launching Scud missiles against Israel and Saudi Arabia, “since these missiles are not precision weapons and are clearly intended to hit civilian targets”.

In 1995, in a letter to the UK House of Lords, the government spokesman deplored the use of weapons by the Israeli artillery in southern Lebanon that “may be deemed … to have indiscriminate effects”.

United Kingdom, House of Lords, Letter from the government spokesman, 6 February 1995, BYIL, Vol. 66, 1995, p. 713.

United Kingdom of Great Britain and Northern Ireland

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United Kingdom stated:

3.67 A further argument which has been raised is that the use of any nuclear weapon would necessarily have such terrible effects upon civilians that it would violate those rules of the law of armed conflict which exist for their protection. There are two principles of particular relevance in this respect. First, it is a well established principle of customary international law that the civilian population and individual civilians are not a legitimate target in their own right. The parties to an armed conflict are required to discriminate between civilians and civilian objects on the one hand and combatants and military objectives on the other hand and to direct their attacks only against the latter …

3.68 … Modern nuclear weapons are capable of far more precise targeting and can therefore be directed against specific military objectives without the indiscriminate effect on the civilian population which the older literature assumed to be inevitable.

Existing laws of armed conflict do not prohibit the use of weapons whose destructive force cannot be limited to a specific military objective. The use of such weapons is not proscribed when their use is necessarily required against a military target of sufficient importance to outweigh inevitable, but regrettable, incidental casualties to civilians and destruction of civilian objects … I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons against civilian population[s] or civilians as such, but there is no rule of international law that restrains them from using weapons against enemy armed forces or military targets. The correct rule of international law which has applied in the past and continued to apply to the conduct of our military operations in Southeast Asia is that “the loss of life and damage to property must not be out of proportion to the military advantage to be gained”.

United States, Letter from J. Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy, Chairman of the Subcommittee on Refugees of the Committee on the Judiciary, 22 September 1972, AJIL, Vol. 67, 1973, p. 124.

United States of America

In 1987, during the debate on Security Council Resolution 598 concerning the use of chemical weapons in the Iran–Iraq war, the United States stated that chemical weapons “honored no distinction between combatants and non-combatants”.

In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense accused Iraq of “indiscriminate Scud missile attacks”.

United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 635.

United States of America

In 1992, in a review of the legality of extended range anti-armour munition, the US Department of the Air Force stated:

International law also forbids the use of weapons or means of warfare which are “indiscriminate.” A weapon is indiscriminate if it cannot be directed at a military objective or if, under the circumstances, it produces excessive civilian casualties in relation to the concrete and direct military advantage anticipated. The ERAM [extended range antiarmor munition] is clearly capable of being directed at a military objective, i.e., enemy armor formations.

In 1993, in its report to Congress on the protection of natural and cultural resources during times of war, the US Department of Defense stated:

Finally, with the poor track record of compliance with the law of war by some nations, the United States has a responsibility to protect against threats that may inflict serious collateral damage to our own interests and allies. These threats can arise from any nation that does not have the capability or desire to respect the law of war. One example is Iraq’s indiscriminate use of SCUDs during the Iran–Iraq War and the Gulf War. These highly inaccurate theater ballistic missiles can cause extensive collateral damage well out of proportion to military results.

United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, p. 203.

United States of America

In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United States stated:

It has been argued that nuclear weapons are unlawful because they cannot be directed at a military objective. This argument ignores the ability of modern delivery systems to target specific military objectives with nuclear weapons, and the ability of modern weapon designers to tailor the effects of a nuclear weapon to deal with various types of military objectives. Since nuclear weapons can be directed at a military objective, they can be used in a discriminate manner and are not inherently indiscriminate.

United States, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, p. 23; see also Oral pleadings before the ICJ, Nuclear Weapons case, 15 November 1995, Verbatim Record CR 95/34, p. 70.

United States of America

In 1998, in a legal review of Oleoresin Capsicum (OC) pepper spray, the Deputy Assistant Judge Advocate General of the US Department of the Navy stated:

A weapon must be discriminating, or capable of being controlled (i.e., it can be directed against intended targets). Those weapons which cannot be employed in a manner which distinguishes between lawful combatants and noncombatants violate these principles. Indiscriminate weapons are prohibited by customary international law and treaty law.

The OC system contemplated for acquisition and employment by the Marine Corps is specifically designed to limit its effects only to intended targets. The contemplated OC dispersers utilize a target specific stream of ballistic droplets for controlled delivery and minimal cross contamination (i.e., point target delivery), rather than an aerosolized spray which increases the likelihood of unintended subject impact. Provided the weapon is employed in a discriminating manner, the principle of distinction/discrimination presents no prohibition to acquisition and employment of OC in appropriate circumstances.

The Report on US Practice states: “It is the opinio juris of the United States that customary international law prohibits the use of indiscriminate weapons. Indiscriminate weapons are those that cannot be directed at a military objective.”

Report on US Practice, 1997, Chapter 3.3.

Viet Nam

In 1976, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Viet Nam stated:

No purpose would be served by suggesting the prohibition or the restriction of specific categories of weapons, since such suggestions amounted only to the classical criteria of the Declaration of St. Petersburg and the Hague Conventions.

In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, Zimbabwe stated:

Nuclear weapons create a vastly greater threat than any other weapon because of their indiscriminate nature. The radiation from nuclear weapons knows no boundaries … The threat or use of nuclear weapons violates the principles of humanitarian law prohibiting the use of weapons or methods of warfare that … are indiscriminate … Zimbabwe would like to emphasize that radiation from nuclear weapons cannot be contained either in space or in time.

In 2014, in a speech on the occasion of a workshop on the Biological and Toxin Weapons Crimes Bill, the Director of Procurement, Research and Administration in Zimbabwe’s Ministry of Defence stated:

As some of you may be aware, the Biological and Toxin Weapons Bill falls into the category of [c]hemical disarm[a]ment legislation that seeks to criminalise and prohibit the use of harmful chemicals and toxins in warfare. The bill seeks to protect the society from the indiscriminate effects of biological and toxin weapons in the event of armed conflict. You are aware, ladies and gentlemen[,] that once these biological and toxin weapons are unleashed, they don’t discriminate between a combatant and an innocent civilian and this is undesirable. It is our duty as Government to protect our people and as such we do not want our people to become victims of such atrocious substances.

Zimbabwe, Speech by the Director of Procurement, Research and Administration in the Ministry of Defence on the occasion of the Workshop on the Biological and Toxin Weapons Crimes Bill, 24 November 2014, p. 3.

In a resolution adopted in 1961 on the Declaration on the Prohibition of the Use of Nuclear Weapons and Thermo-Nuclear Weapons, the UN General Assembly stated:

The use of nuclear and thermo-nuclear weapons would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and to the laws of humanity.

UN General Assembly, Res. 1653 (XVI), 24 November 1961, § 1(b), voting record: 55-20-26-2. (The resolution was adopted by 55 votes in favour, 20 against and 26 abstentions. Three of the abstaining States, Ecuador, the Islamic Republic of Iran and Sweden, nevertheless indicated in their written statements submitted to the ICJ in the Nuclear Weapons case in 1995 that they did consider such weapons to be indiscriminate (see supra).)

UN General Assembly

In a resolution adopted in 1972 on general and complete disarmament, the UN General Assembly:

Convinced that the widespread use of many weapons and the emergence of new methods of warfare that cause unnecessary suffering or are indiscriminate call urgently for renewed efforts by Governments to seek, through legal means, the prohibition of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible, through measures of disarmament, the elimination of specific, especially cruel or indiscriminate weapons.

In a resolution adopted in 1973 on napalm and other incendiary weapons, the UN General Assembly:

Convinced that the widespread use of many weapons and the emergence of new methods of warfare that may cause unnecessary suffering or are indiscriminate call urgently for efforts by Governments to seek, through possible legal means, the prohibition or restriction of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible, through measures of disarmament, the elimination of specific weapons that are especially cruel or indiscriminate,

Welcoming as a basis for discussion at [the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts] the proposals elaborated by the International Committee of the Red Cross and aiming, inter alia, at a reaffirmation of the fundamental general principles of international law prohibiting the use of weapons which are likely to cause unnecessary suffering and means and methods of warfare which have indiscriminate effects.

UN General Assembly, Res. 3076 (XXVIII), 6 December 1973, preamble, voting record: 103-0-18-14 (GDR, Netherlands, United Kingdom, US and USSR explained their abstentions as being based on their opposition to the CDDH being considered the appropriate forum to discuss incendiary weapons).

UN General Assembly

In a resolution adopted in 1974 on napalm and other incendiary weapons, the UN General Assembly:

… expressed its conviction that the widespread use of many weapons and the emergence of new methods of warfare that cause unnecessary suffering or are indiscriminate call urgently for renewed efforts by Governments to seek, through legal means, the prohibition of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible through measures of disarmament, the elimination of specific, especially cruel or indiscriminate weapons,

Mindful of the fact that much suffering of civilian populations and combatants may be avoided if general agreement can be attained on the prohibition or restriction of the use of specific conventional weapons which may be deemed to cause unnecessary suffering or to have indiscriminate effects.

In a resolution adopted in 1976 on incendiary and other specific conventional weapons, the UN General Assembly:

Convinced that the suffering of civilian populations and combatants could be significantly reduced if general agreement can be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed to be excessively injurious or to have indiscriminate effects,

…

2. Invites the Diplomatic Conference [on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts] to accelerate its consideration of the use of specific conventional weapons, including any which may be deemed to be excessively injurious or to have indiscriminate effects, and to do its utmost to agree for humanitarian reasons on possible rules prohibiting or restricting the use of such weapons.

UN General Assembly, Res. 31/64, 10 December 1976, preamble and § 2, adopted without a vote.

UN General Assembly

In a resolution adopted in 1977 on incendiary and other specific conventional weapons which may be the subject of prohibitions or restrictions of use for humanitarian reasons, the UN General Assembly:

Convinced that the suffering of civilian populations and combatants could be significantly reduced if general agreement can be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.

In a resolution adopted in 1978 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:

Reiterating its conviction that the suffering of civilian populations and of combatants could be significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.

UN General Assembly, Res. 33/70, 14 December 1978, preamble, adopted without a vote;

UN General Assembly

In a resolution adopted in 1979 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:

Recalling its resolution 33/70 of 14 December 1978, in which is expressed its conviction that the suffering of civilian populations and of combatants could be significantly reduced if general agreement could be reached on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.

UN General Assembly, Res. 34/82, 11 December 1979, preamble, adopted without a vote.

UN General Assembly

In a resolution adopted in 1980 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:

Reiterating its conviction that the suffering of civilian populations and of combatants could be significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.

UN General Assembly, Res. 35/153, 12 December 1980, preamble, adopted without a vote;

UN General Assembly

In a resolution adopted in 1981 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:

Reaffirming its conviction that the suffering of civilian populations and of combatants would be further significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.

UN General Assembly, Res. 36/93, 9 December 1981, preamble, adopted without a vote

UN General Assembly

In a resolution adopted in 1982 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:

Reaffirming its conviction that the suffering of civilian populations and of combatants would be significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed… to have indiscriminate effects.

UN General Assembly, Res. 37/79, 9 December 1982, preamble, adopted without a vote.

This statement was repeated in numerous subsequent General Assembly resolutions.

In a resolution adopted in 2003 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:

Recalling with satisfaction the decision by the Second Review Conference, on 21 December 2001, to extend the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character,

…

1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and the Protocols thereto, as amended, as well as the amendment of article I extending the scope of the Convention, with a view to achieving the widest possible adherence to these instruments at an early date, and calls upon successor States to take appropriate measures so that ultimately adherence to these instruments will be universal;

2. Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention;

3. Calls upon all States parties to the Convention that have not yet done so to notify the depositary at an early date of their consent to be bound by the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.

In a resolution adopted in 2004 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:

1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;

2. Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.

In a resolution adopted in 2005 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:

1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;

2. Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.

In a resolution adopted in 2006 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:

1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;

2. Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.

In a resolution adopted in 2007 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:

1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;

2. Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.

In a resolution adopted in 1996, the UN Sub-Commission on Human Rights urged all States “to be guided in their national policies by the need to curb the production and the spread of weapons of mass destruction or with indiscriminate effects”. It then listed the following as falling within this category: nuclear, chemical and biological weapons, fuel-air and cluster bombs, and napalm and weaponry containing depleted uranium. It also stated that the use of these weapons was incompatible with human rights law and IHL.

A survey carried out by the UN Secretariat in 1973 analysed practice and doctrine in relation to different humanitarian rules and enumerated the weapons that had been discussed from the point of view of their indiscriminate effects. These were: chemical and bacteriological weapons, incendiary weapons, nuclear weapons, conventional aerial bombardment, fragmentation bombs, landmines and booby-traps, missiles, delayed action weapons and naval weapons.

UN Secretariat, Respect for human rights in armed conflicts, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey, UN Doc. A/9215, 21 November 1973, p. 209.

In a resolution adopted in 1994 on respect for international humanitarian law, the OAS General Assembly stated that it was “deeply disturbed by the testing, production, sale, transfer, and use of certain conventional weapons which may be deemed … to have indiscriminate effects”. It urged all member States to accede to the two 1977 Additional Protocols and to the 1980 Convention on Certain Conventional Weapons.

OAS, General Assembly, Res. 1270 (XXIV-O/94), 10 June 1994, preamble.

This call was repeated in 1995.

OAS, General Assembly, Res. 1335 (XXV-O/95), 9 June 1995, § 1.

Organization of American States

In a resolution adopted in 1998 on respect for international humanitarian law, the OAS General Assembly stated: “International humanitarian law prohibits the use of weapons, projectiles, material, and methods of warfare that have indiscriminate effects or cause excessive injury or unnecessary suffering.”

The 22nd International Conference of the Red Cross in 1973 adopted a resolution on the prohibition or restriction of the use of certain weapons in which it endorsed the view of the UN General Assembly in Resolution 2932 (XXVII) A:

The widespread use of many weapons and the emergence of new methods of warfare that cause unnecessary suffering or are indiscriminate call urgently for renewed efforts by governments to seek, through legal means, the prohibition or restriction of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible, through measures of disarmament, the elimination of specific, especially cruel or indiscriminate, weapons.

The resolution urged the CDDH to “begin consideration at its 1974 session of the question of the prohibition or restriction of the use of conventional weapons which may cause unnecessary suffering or have indiscriminate effects” and invited the ICRC to convene in 1974 a conference of government experts to study the issue in depth.

22nd International Conference of the Red Cross, Tehran, 8–15 November 1973, Res. XIV.

International Conference of the Red Cross (1981)

The 24th International Conference of the Red Cross in 1981 adopted a resolution on conventional weapons in which it noted with satisfaction the adoption of the 1980 Convention on Certain Conventional Weapons and its Protocols and invited States to become parties to them “as soon as possible, to apply them and examine the possibility of strengthening or developing them further”.

The 24th International Conference of the Red Cross in 1981 adopted a resolution on disarmament, weapons of mass destruction and respect for non-combatants in which it urged parties to armed conflicts “not to use methods and means of warfare that cannot be directed against specific military targets and whose effects cannot be limited”.

The 26th International Conference of the Red Cross and Red Crescent in 1995 stated: “Proper attention should be given to other existing conventional weapons or future weapons which may cause unnecessary suffering or have indiscriminate effects.”

Second Review Conference of States Parties to the Convention on Certain Conventional Weapons

In the Final Declaration of the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, the High Contracting Parties expressed their grave concern that “the indiscriminate effects … of certain conventional weapons often fall on civilians, including in non-international armed conflicts”.

Second Review Conference of States Parties to the Convention on Certain Conventional Weapons, Geneva, 11–21 December 2001, Final Declaration, UN Doc. CCW/CONF.II/2, 25 January 2002, p. 8.

African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict

In the Final Declaration of the African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict in 2002, the participants stated that they were “worried in the face of the rapid expansion of arms trade and the uncontrolled proliferation of weapons, notably those which can have indiscriminate effects”.

African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict, Final Declaration, Niamey, 18–20 February 2002, preamble.

In its advisory opinion in the Nuclear Weapons case in 1996, the ICJ stated:

The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets … In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians … Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.

ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, §§ 78–79.

International Court of Justice

In his dissenting opinion in the Nuclear Weapons case before the ICJ in 1996, Judge Weeramantry stated: “The rule of discrimination between civilian populations and military personnel is, like some of the other rules of ius in bello, of ancient vintage and shared by many cultures.”

In her dissenting opinion in the Nuclear Weapons case before the ICJ in 1996, Judge Higgins stated:

Very important also … is the requirement of humanitarian law that weapons may not be used which are incapable of discriminating between civilian and military targets.

The requirement that a weapon be capable of differentiating between military and civilian targets is not a general principle of humanitarian law specified in the 1899, 1907 or 1949 law, but flows from the basic rule that civilians may not be the target of attack … It may be concluded that a weapon will be unlawful per se if it is incapable of being targeted at a military objective only, even if collateral damage occurs.

Judge Higgins was the only judge that offered a concrete definition of “indiscriminate weapons”, stating:

It may be concluded that a weapon will be unlawful per se if it is incapable of being targeted at a military objective only, even if collateral harm occurs. Notwithstanding the unique and profoundly destructive characteristics of all nuclear weapons, that very term covers a variety of weapons which are not monolithic in all their effects. To the extent that a specific nuclear weapon would be incapable of this distinction, its use would be unlawful.

In his separate opinion in the Nuclear Weapons case before the ICJ in 1996, Judge Guillaume stated: “Customary humanitarian law contains one single absolute prohibition: the one of so-called ‘blind’ weapons which are incapable of distinguishing between civilian targets and military targets. Obviously, nuclear weapons do not necessarily fall into this category.” He also stated: “The collateral damage caused to the civilian population must not be ‘excessive’ as compared to the ‘military advantage’ offered.”

In a declaration in the Nuclear Weapons case before the ICJ in 1996, President Bedjaoui considered the weapons to be “of a nature to hit victims indiscriminately, confusing combatants and non-combatants”.

ICJ, Nuclear Weapons case, Declaration of President Bedjaoui, President of the ICJ, 8 July 1996, § 20.

International Criminal Tribunal for the former Yugoslavia

In its review of the indictment in the Martić case in 1996, the ICTY Trial Chamber had to determine whether the use of cluster bombs was prohibited in an armed conflict. Noting that no formal provision forbade the use of such bombs, the Trial Chamber recalled that the choice of weapons and their use were clearly delimited by IHL. Among the relevant norms of customary law, the Court referred to Article 51(4)(b) of the 1977 Additional Protocol I, which forbade indiscriminate attacks involving the use of a means or method of combat that could not be directed against a specific military objective.

ICTY, Martić case, Review of the Indictment, 8 March 1996, § 18.

In its judgment in 2007, the Trial Chamber stated:

[I]ndiscriminate attacks, that is attacks which affect civilians or civilian objects and military objects without distinction, may also be qualified as direct attacks on civilians. In this regard, a direct attack against civilians can be inferred from the indiscriminate character of the weapon used.

ICTY, Martić case, Judgment, 12 June 2007, § 69.

International Criminal Tribunal for the former Yugoslavia

In the Dragomir Milošević case before the ICTY in 2006, the accused was charged, inter alia, with unlawful attacks on civilians as a violation of the laws or customs of war, in violation of Article 51 of the 1977 Additional Protocol I and Article 13 of the 1977 Additional Protocol II, and punishable under Articles 3, 7(1) and 7(3) of the 1993 ICTY Statute. According to the amended indictment:

Dragomir Milošević, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps and/or forces affiliated with the VRS [Army of Republika Srpska], conducted a campaign of artillery and mortar and modified air bomb shelling onto civilian areas of Sarajevo and upon its civilian population … [G]iven the inherent inability of modified airbombs to engage specific targets, their deployment could only have been intended to cause civilian casualties. The campaign of shelling resulted in over a thousand civilians being killed or injured.

To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that it is prohibited to use weapons “which, because of their lack of precision or their effects, affect civilian persons and combatants without distinction”. Delegates also teach that “belligerent Parties and their armed forces shall abstain from using weapons whose harmful effects go beyond the control, in time or place, of those employing them”.

Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 912(b) and (c).

ICRC

In a press release issued in 1991 in the context of the Gulf War, the ICRC reminded the belligerents: “Weapons having indiscriminate effects … are prohibited.”

In 1996, in a statement before the First Committee of the UN General Assembly, the ICRC commented on the advisory opinion of the ICJ in the Nuclear Weapons case, stating:

Turning now to the nature of nuclear weapons, we note that, on the basis of the scientific evidence submitted, the Court found that “… The destructive power of nuclear weapons cannot be contained in either space or time … the radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations …” In the light of this, … the ICRC finds it difficult to envisage how a use of nuclear weapons could be compatible with the rules of international humanitarian law.

ICRC, Statement before the First Committee of the UN General Assembly, 18 October 1996.

ICRC

In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC proposed that the employment of “weapons, projectiles and material and methods of warfare … inherently indiscriminate”, when committed in international or non-international armed conflicts, be subject to the jurisdiction of the Court.

ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establishment of an International Criminal Court, New York, 14 February 1997, §§ 2(i) and 3(vii).

In a resolution adopted during its Edinburgh Session in 1969, the Institute of International Law stated:

Existing international law prohibits the use of all weapons which, by their very nature, affect indiscriminately both military objectives and non-military objects, or both armed forces and civilian populations. In particular, it prohibits the use of weapons the destructive effect of which is so great that it cannot be limited to specific military objectives or is otherwise uncontrollable (self-generating weapons) as well as of “blind” weapons.

Institute of International Law, Edinburgh Session, Resolution on the Distinction between Military Objectives and Non-military Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction, 9 September 1969, § 7.

Americas Watch

In 1985, in a report on violations of the laws of war in Nicaragua, Americas Watch listed the “use of ‘blind’ weapons that cannot be directed with any reasonable assurance against a specific military objective” among actions which were “prohibited by applicable international law rules”.

Americas Watch, Violations of the Laws of War by Both Sides in Nicaragua: 1981–1985, New York, March 1985, p. 34.

Africa Watch

In 1989, in a report on violations of the laws of war in Angola, Africa Watch listed the “use of ‘blind’ weapons that cannot be directed with any reasonable assurance against a specific military objective” among prohibited practices.

Africa Watch, Angola: Violations of the Laws of War by Both Sides, New York, April 1989, p. 141.